Calabrese — a privacy lobbyist — was first careful to note that
the ACLU doesn’t strictly oppose universal background checks for
gun purchases. “If you’re going to require a background check, we
think it should be effective,” Calabrese explained.

“However, we also believe those checks have to be conducted in a
way that protects privacy and civil liberties. So, in that
regard, we think the current legislation, the current
proposal on universal background checks raises two significant
concerns,” he went on.

“The first is that it treats the records for private purchases
very differently than purchases made through licensed sellers.
Under existing law, most information regarding an
approved purchase is destroyed within 24 hours when a licensed
seller does a [National Instant Criminal Background Check System]
check now,” Calabrese said, “and almost all of it is destroyed
within 90 days.”

Calabrese wouldn’t characterize the current legislation’s
record-keeping provision as a “national gun registry” — which the
White House has denied pursuing — but he did say that such a
registry could be “a second step.”

“[U]nfortunately, we have seen in the past that the creation of
these types of records leads sometimes to the creation of
government databases and collections of personal information on
all of us,” Calabrese warned. “That’s not an inevitable result,
but we have seen that happen in the past, certainly.”

“As we’ve seen with many large government databases, if you build
it, they will come.”

“And existing law also bars the use of those records for other
purposes,” Calabrese continued, explaining that the government is
supposed to be barred by the Privacy Act from transferring
database information between agencies without the consent of the
individual citizen.

“We think those are privacy best practices,” Calabrese said. “We
think almost all government databases should operate that way.”

“Once you no longer need the information, you should destroy it.
Information collected for one purpose shouldn’t be used for
another purpose,” he said.

But Calabrese says that Reid’s legislation fails to include those
“privacy best practices.”

“Contrast this with what the existing [Reid] legislation says,
which is simply that a record has to be kept of a private
transfer,” Calabrese highlighted, “and it doesn’t have any of the
protections that we have in current law
for existing licensees.”

“We think that that kind of record-keeping requirement could
result in keeping long-term detailed records of purchases and
creation of a new government database.”

“And they come to use databases for all sorts of
different purposes,” Calabrese said. “For example, the
National Counterterrorism Center recently gave itself
the authority to collect all kinds of existing federal
databases and performed terrorism related searches regarding
those databases. They essentially exempted themselves from a lot
of existing Privacy Act protections.”

“So you just worry that you’re going to see searches of the
databases and an expansion for purposes that were not intended
when the information was collected.”

Reid’s legislation is hauntingly vague about who would physically
keep information about American gun purchases, but it’s crystal
clear that records will be kept.

“Regulations … shall include a provision requiring a record
of transaction of any transfer that occurred between an
unlicensed transferor and unlicensed transferee,” according to
the bill.

The ACLU’s second “significant concern” with Reid’s legislation
is that it too broadly defines the term “transfer,” creating
complicated criminal law that law-abiding Americans may
unwittingly break.

“[I]t’s certainly a civil liberties concern,” Calabrese told
TheDC. “You worry about, in essence, a criminal justice trap
where a lawful gun owner who wants to obey the law inadvertently
runs afoul of the criminal law.”

“They don’t intend to transfer a gun or they don’t think that’s
what they’re doing, but under the law they can be defined as
making a transfer. We think it’s important that anything that is
tied to a criminal sanction be easy to understand and avoid
allowing too much prosecutorial discretion.”

“For example, different gun ranges are treated differently,”
Calabrese said. “You’re firing a firearm in one geographic
location, you’re OK, but in another, you’re not. And those kind
things, it’s going to be hard for your average consumer to really
internalize and figure out the difference.”

“Criminal sanctions shouldn’t hinge on those kinds of
differences,” he said.

Separate from the ACLU’s concerns with a universal background
check system, Calabrese flagged another provision of the
legislation invented by Sen. Boxer that the ACLU is “worried
about” — school tiplines for the reporting of “potentially
dangerous students”

“We’re worried about this tip line,” Calabrese admitted. “We
think we already have a phone number for reporting dangerous
situations — it’s called 9-1-1.”

“The tip line doesn’t have any guidance for who should be
included, how we should vet these requests, who should be
included in the system, what you should do with this information
once you get it,” he warned. “It just seems like a dangerously
unregulated avenue that’s going to risk pushing more kids into
the criminal justice system.”

“What’s a school supposed to do if they get an anonymous phone
call that some kid is dangerous?” Calabrese went on. “How are
they supposed to treat that? Do they have liability if they
ignore it? Should this kid be suspended? Or should he be
scrutinized by a school safety officer because of an anonymous
tip?”

“You could see how this could run amok very quickly. These are
high schools. Lord knows, if you’re going to give a kid an
anonymous opportunity to lash out at someone, you’re going to see
a lot of problems.”